UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 6790
ROBERT T. WINZINGER, INC.,
Respondent.

July 22, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY, Commissioner:

On February 5, 1975, Administrative Law Judge William E. Brennan issued his decision affirming two of four alleged violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter the ‘Act’] issued to respondent employer, Robert T. Winzinger, Inc. The Judge affirmed a citation for serious violation for failure to comply with the standard at 29 CFR § 1926.651(c),[1] and one item of a citation for non-serious violations, for failure to comply with the standard at 29 CFR § 1926.651(i)(1).[2] Two items of the non-serious citation, alleging noncompliance with the standards at 29 CFR § 1926.602(a)(9)(ii)[3] and 29 CFR § 1904.2,[4] were vacated.

The $650 penalty proposed by the Secretary for the serious violation was reduced by the Judge to $325. Also, although the Secretary proposed no penalty for respondent’s failure to comply with § 1926.651(i)(1), the Judge assessed a penalty of $25.

Pursuant to section 12(j) of the Act, review of the Judge’s decision was directed on the following issues:

(1) With regard to the violation of § 1926.651(i)(1), what was the legal basis for the assessment of a monetary penalty where none had been proposed; and

(2) With regard to the vacation of the alleged violation of $1926.602(a)(9)(ii), whether the Judge committed reversible error in finding that there was no evidence of record to support a conclusion that Respondent knew, or could have reasonably anticipated, the breach of company rules by its employee, or that such breach was other than an isolated occurrence.

The relevant facts are as follows: On January 24, 1974, an OSHA compliance officer inspected respondent’s worksite in Camden, New Jersey. The compliance officer observed an excavation which was 27-feet long, 15-feet wide, and 10-feet deep. The excavation was dug in a sandy soil. Some clay was encountered toward the bottom of the excavation. Various types of debris in the excavation, such as bricks and pieces of wood, indicated that some parts of the excavation consisted of backfill. Recent rains caused the soil to be damp. This adversely affected the soil’s stability. Further, a heavily travelled road passed within 7 feet of the excavation, increasing the load on the walls, and subjecting them to vibration. Excavated materials were piled directly on the edges of the excavation. The highest pile was measured to be 40 inches. The evidence establishes that at least one, and possibly three, employees had been in the excavation before the inspection.

The compliance officer also observed a front-end loader with an obstructed rear view being operated in reverse without a backup alarm or signalman. The loader had been equipped with an alarm, but it had been disconnected by the operator.

In his decision, Judge Brennan found that respondent had not complied with the requirements of 29 CFR § 1926.651(c) and 29 CFR § 1926.651(i)(1). Considering respondent’s size, good-faith, safety history, and the gravity of the violation the Judge reduced the penalty for the § 1926.651(c) violation to $325 from the $650 proposed by the Secretary. Although the Secretary proposed no penalty for the § 1926.651(i)(1) violation the Judge, finding that the extra load imposed on the excavation walls by the spoils piles increased the danger of a cave-in, assessed a penalty of $25.

It is well-settled that this Commission has the authority to assess penalties in excess of those proposed by the Secretary. California Stevedore & Ballast Co. v. O.S.H.R.C., 517 F.2d 986, 988 (9th Cir. 1975); REA Express, Inc. v. O.S.H.R.C., 495 F.2d 822, 827 (2d Cir. 1974); Brennan v. O.S.H.R.C. and Interstate Glass Co., 487 F.2d 438, 442 (8th Cir. 1973).

Respondent was cited for noncompliance with § 1926.651(i)(1) because the compliance officer believed that there was a hazard, albeit slight, that piled material could fall into the excavation and onto employees working within it. The Judge imposed the $25 penalty for the violation because he found that the extra load imposed by the spoil piles increased the likelihood of a cave-in. Thus, the penalty assessment was based upon the gravity of the § 1926.651(c) violation. The proper action for the Judge in this situation would have been to increase the penalty for the violation which the condition aggravated. We will, therefore, vacate the penalty for the § 1926.651(i)(1) violation, but raise the penalty for the serious violation of § 1926.651(c) by the amount involved to reflect more accurately the gravity of the violation caused by the spoil piles.

Regarding the alleged violation of § 1926.6 2(a) Judge found that the operator of the front-end loader backup alarm contrary to respondent’s instructions. any evidence of record to indicate that respondent knew reasonably anticipated this breach of company rules, the that the disconnection of the alarm was an ‘isolated employee disobedience. Citing to the principle announced in Standard Glass Co., Inc., 1971-1973 CCH OSHD para. 15,146, 1 BNA OSHC 1045 (No. 259, 1972), the Judge vacated the item.

The Judge erred. Whether a violation was the result of an unexpected, isolated instance of employee disobedience of a uniformly enforced work rule is an affirmative defense to be proved by the respondent. Standard Glass Co., Inc., supra; Mississippi Valley Erection Co., 1973-1974 CCH OSHD para. 17,098, 1 BNA OSHC 1527 (No. 524, 1973); Murphy Pacific Marine Salvage Co., 1974-1975 CCH OSHD para. 19,205, 2 BNA OSHC 1464 (No. 2082, 1975). Thus, it was error for the Judge to vacate the item on the grounds that the record was devoid of evidence establishing respondent’s knowledge of the violation in that the Secretary did not prove that the disconnecting of the alarm was not an isolated occurrence.

Further, the record establishes that, although there was a company rule against disconnecting the backup alarm, that rule was not uniformly enforced. Respondent’s equipment operator testified that it was common practice to disconnect the alarm when working in the middle of an open field or roadway. Respondent’s vice-president testified that, although an operator would be asked to reconnect an alarm when one was found to be disconnected, there was no formal company policy against disconnecting the alarms. In light of this evidence, it is clear that respondent failed to establish the affirmative defense and was in violation of the standard.

The evidence also establishes employee exposure to the hazard. Approximately six employees were in the general area of the front-end loader. One employee was approximately 20 feet from the vehicle. We find the Secretary’s proposed penalty of $30 to be appropriate. Respondent is of average size. It grossed under $7 million during 1973 and maintains a work force of approximately 100-110 employees. Respondent has exhibited good-faith in this matter and has no history of previous violations. Finally, the violation was of low gravity. The compliance officer testified that because the vehicle moved slowly and there were only a few employees in the area of operation, the probability of an accident was very low.

Accordingly, it is ORDERED that: (1) No penalty be assessed for the violation of 29 CFR § 1926.651(i)(1); (2) A penalty of $350 is assessed for the citation for serious violation of 29 CFR § 1926.651(c); (3) The citation for violation of 29 CFR § 1926.602(a)(9)(ii) is affirmed and a penalty of $30 is assessed.

In all other respects, the Judge’s decision is affirmed.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

By: Gloria W. White

Acting Executive Secretary

DATED: JUL 22, 1976

MORAN, Commissioner, Dissenting:

This case represents another complete reversal from the position taken by the same two members in Secretary v. Francisco Tower Service, OSAHRC Docket No. 4845, February 6, 1976, and more than 50 subsequent decisions which have cited that decision as precedent for vacating a Commission member’s direction that a Judge’s decision be reviewed.

Messrs. Barnako and Cleary took the position in those cases that there was no justification for taking up matters on review which were not raised by the parties. To quote from their Francisco Tower decision: ‘The ‘issue’ was neither raised, tried, nor argued by the parties.’

Now I ask my colleagues—and they will have plenty of time to revise their opinion before this decision is issued—which party ‘raised, tried, or argued’ that Judge Brennan’s assessment of a $325 penalty for the § 1926.651(a) charge was inadequate? The briefs and other documents filed by the parties show that no mention of increasing this penalty from $325 to $350 was ever raised. Although two members of the Commission filed directions for review, neither of them mentioned the penalty levied by the Judge for the § 1926.651(a) charge.

For two members of this Commission to arbitrarily increase a penalty amount—without ever notifying the parties that such a matter is under consideration or giving them a chance to state views on the matter—dishonors the judicial process and smacks of star-chamber ‘justice.’ For Messrs. Barnako and Cleary to do this—after pontificating for six months that the Commission should not take up matters which were not listed in the direction for review.[5] —unmasks their transparent hypocrisy for all to see.

The foregoing is not only charge in this case for which my colleagues have ordered an erroneous disposition.

Judge Brennan vacated a charge[6] that respondent violated the Act because of an alleged failure to comply with the requirements of 29 C.F.R. § 1926.602(a)(9)(ii). The charge specified that a piece of construction equipment was not equipped with a reverse alarm. The Judge found that the equipment did have such an alarm ‘[h]owever, its operator, contrary to respondent’s instructions, had disconnected this alarm because there were no employees in the immediate area where this equipment was being used to compact fill dirt.’

In order for the respondent to be in violation of the Act there must be evidence establishing that its employees were exposed to the hazard resulting from noncompliance with the cited safety standard. See e.g., Secretary v. Chicago Bridge & Iron Company, 14 OSAHRC 361 (1974); Secretary v. Bechtel Corporation, 12 OSAHRC 774 (1974). This Commission has determined that exposure is established if the employees had access[7] to the zone of danger. That is, complainant must prove that the employees either while in the course of their assigned working duties, their personal comfort activities while on the job, or their normal means of ingress-egress to their assigned workplaces, will be, are, or have been in the zone of danger. Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504 (February 20, 1976).

That is not the case here. As the Judge stated: ‘. . . there were no employees in the immediate area . . .’ Incredulously, however, my colleagues conclude that complainant did establish that the respondent’s employees were exposed to the zone of danger. The facts clearly do not support this finding. The only evidence in relation thereto is that the closest employee was approximately 20 feet from the front-end loader. The record is void as to whether any employee’s assigned working duties, personal comfort activities, or normal means of ingress-egress to his assigned workplace did or would require being closer than 20 feet therefrom. This distance certainly cannot be considered part of the zone of danger of the swing radius of a front-end loader. Messrs. Barnako and Cleary, however, blatantly ignore the criteria they put forth in Gilles & Cotting in determining that there was access to the zone of danger by the respondent’s employees.

The majority decision is also wrong on the law it applies in resolving this charge. They state that ‘[w]hether a violation was the result of an unexpected, isolated instance of employee disobedience of a uniformly enforced work rule is an affirmative defense to be proved by the respondent.’ No court has ever held to this effect and, two in fact, have specifically held just the opposite. I quote from Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564, 570 (5th Cir. 1976):

The Ninth Circuit recently affirmed a Commission decision holding that employer knowledge is an element of proof of both serious violations under section 17(k) and nonserious violations and that the burden is on the Secretary to prove the existence of that element rather than on the respondent to prove its absence. Brennan v. Occupational Safety and Health Com’n, 511 F.2d 1139 (9th Cir. 1975) . . . We adopt the reasoning of the Ninth Circuit . . .

Messrs. Barnako and Cleary ignore these two decisions—rendered in 1975 and 1976—by United States Courts of Appeal, and cite instead to much older rulings of this Commission which state a contrary rule. Their reason for such a bizarre approach is not stated.

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 6790
ROBERT T. WINZINGER, INC.,
Respondent.

FINAL ORDER DATE: March 7, 1975

DECISION AND ORDER

APPEARANCES:

FOR THE SECRETARY OF LABOR

Francis V. LaRuffa, Regional Solicitor Theodore T. Gotsch, Esq. U.S. Department of Labor

FOR THE RESPONDENT Kelly Young, Esq.

Brennan, W. E.; A.L.J.

This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c), (hereinafter the Act), to review a Citation for Serious Violation (one Item) and a Citation for Nonserious Violations (three Items) and penalties proposed thereon issued pursuant to Sections 9(a), and 10(a) of the Act, (29 U.S.C. 658(a) and 659(c)) on January 28, 1974, by the Secretary of Labor through the Area Director of the Occupational Safety and Health Administration for Newark, New Jersey, (hereinafter Complainant) to Robert T. Winzinger, Inc., of Hainesport, New Jersey, (hereinafter Respondent).

These citations allege violations of Section 5(a)(2) of the Act by Respondent on January 24, 1974, at an excavation worksite located at the intersection of Fifth and Mickle Streets in Camden, New Jersey, (hereinafter worksite), because of its failure to comply with the Occupational Safety and Health Standards as set forth below:

Serious Citation
Standard cited	Description of alleged violation
29 C.F.R. 1926.651(a)[8]	West side of Intersection: Failure to guard employees in 10 ft. deep excavation by shoring or sloping ground or other equivalent means; excavated area contains some back fill material; lower north side of excavation is clay, remaining material is sandy soil. Excavation is 7 ft. from heavily travelled 5th Street.
Nonserious Citation
Item No. 1—Standard cited	Descriptions of alleged violations
29 C.F.R. 1926.651(h)(i)(1)[9]	West side of Intersection: Failure to store and retain excavated material at least 2 feet or more from edge of excavation; excavated material up to 40 inches high piled around edge of excavation.
Item No. 2—Standard cited	Description of alleged violation
29 C.F.R. 1926.602(9)(ii)[10]	500 Block Mickle Street: Failure to utilize reverse signal alarm or employee signals while operating Caterpillar Front Loader #850. Rear view of operator obstructed; further, operator was observed backing while looking forward.
Item No. 3—Standard Cited	Description of alleged violations
29 C.F.R. 1904.2	500 Block Mickle Street: Failure to maintain OSHA–100, log of recordable injury and illness records.

Abatement as to all alleged violations was to be accomplished, ‘Immediately upon receipt of this citation.’ A $650 penalty was proposed for the serious violation and a $30 penalty for Item No. 1 of the Nonserious Citation.

Pursuant to Section 10(c) of the Act, 29 U.S.C. 659(c), Respondent, through a letter from its Vice President, gave notice of its intention to contest the Citations and proposed penalties.

After the filing of the Complaint and Answer herein, this case came on for trial at Philadelphia, Pennsylvania pursuant to notice, both parties being represented by counsel.

No affected employees or representatives thereof desired party status.

All briefs and replies were finally filled by October 11, 1974.

Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, stipulations, representations and admissions of the parties, it is concluded that the substantial evidence of record considered as a whole supports the following findings of fact and conclusions of law.

The following facts were stipulated to by the parties.

The Respondent company is incorporated in the State of New Jersey with its principal office located at Marne Highway in Hainesport, New Jersey. Respondent conceded that it is an employer engaged in a business affecting commerce within the meaning of Sections 3 (5) and 3 (6) of the Act, 29 U.S.C. 652(5) and (6). No injuries were involved in this case. The Respondent’s business is of average size with gross receipts for 1973 of $6,924,241. It has an average daily number of employees from 100 to 110, which increases to 180 in the summer months. Respondent had no history of prior violations of the Act.

Serious Citation

The Standard charged to have been violated in the corrected Citation for Serious Violation provides as follows:

29 C.F.R. 1926.651(c)

(c) The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means.

The Complainant produced the testimony of one witness, Mr. Walter Wilson, who when he made an inspection of Respondent’s worksite on January 24, 1974, was a Compliance Officer.[11] He had been so employed by Complainant for approximately 2 1/2 years. Previously, he had been employed in the zero-space industry as a supervising engineer for about 15 years, with responsibilities, in part, for the construction of buildings, including foundations, and special foundations to support spacecraft at two Air Force locations. He holds a degree in Mechanical Engineering from the University of Pittsburgh and is a registered engineer in New Jersey and Pennsylvania. His responsibilities in both the aerospace industry and with the Complainant required an understanding of soils. He was an experienced Compliance Officer, having conducted approximately 250 inspections in that capacity involving both general industry and the construction field.

On January 24, 1974, he inspected Respondent’s worksite. At the intersection of Fifth and Mickle Streets in Camden, New Jersey, he observed an excavation measuring 10 feet deep, 15 feet wide and 27 feet long. In the bottom of this excavation was a concrete foundation, or pad, from the perimeter of which there extended vertical reinforcing rods. The sides of this excavation were substantially vertical and were not sloped. No shoring of any description, or other equivalent means of guarding against moving ground were present. Mr. Wilson photographed this scene. (See Exhs. C–1, C–2, C–3, C–5.)

Upon his arrival at this worksite at approximately 9:00 a.m., Mr. Wilson talked with two of Respondent’s employees, Messrs. Timarco, an ironworker, and Haley, a carpenter. He also met and conducted this inspection with Respondent’s project Superintendent, Mr. Rue.

In talking with these two employees, who were not in this excavation but working at ground level near it, preparing forms, Mr. Wilson testified that both of these employees ‘indicated’ (TR 24) to him that they had been working in this excavation on the morning of the inspection, cleaning dirt off the surface of the foundation, and straightening some of the protruding reinforcing bars (TR 61).

This testimony of course was hearsay, clearly admissible under judicial precedent,[12] but insufficient, standing alone, to establish employee exposure to the hazard of cave-in present in this excavation.[13]

However, the essential element of employee exposure[14] necessary as part of Complainant’s prima facie case,[15] was supplied by the testimony of one of Respondent’s laborers, Rocco DeMarco, who testified that twice, on the day before the inspection he went into this excavation.[16] The first time for ‘several minutes’ (TR 161) to level the bottom of this excavation to grade for receipt of the concrete foundation which had been precast at surface level, the second time to bring some tools and reinforcing bars down into this excavation. (See Exhs. C–2 and C–3.)

Although this employee exposure was very brief,[17] it does satisfy the legal requirements set forth supra (fns. 7 and 8) and thus, Respondent’s defense to this Serious Citation cannot be sustained.

Mr. Wilson further testified that the soil at this excavation consisted of various types, some grey clay towards the bottom, some back fill material as evidenced by buried, broken bricks and other debris, i.e., pieces of wood, and some sandy soil. Further that a light rain was falling on the day of the inspection and it had been ‘rainy’ for the prior two weeks. He voiced the opinion, which is unchallenged in this record, that damp clay is ‘very slippery and unstable’ (TR 37), and that wet weather conditions weaken the stability of soils.

He further testified that in his opinion the excavation in question constituted a serious violation of the Act because of the type of soil present, and its stability being adversely affected by the wet weather conditions, the close proximity of heavy vehicular traffic on Fifth Street, within seven feet of the excavation, which increased the load on the excavation walls as did the vibrations of such traffic, the increased load on the excavation walls caused by storing the excavated soil from the excavation on the edge of the excavation, the vertical, unshored and unsloped excavation walls and the danger that any employee might be impaled upon the reinforcing bars, protruding from the concrete foundation, all resulting in ‘a substantial probability that death or serious physical harm could result’ from these conditions.

There is no reliable evidence in this record to the contrary, in fact, these conclusions are neither challenged nor rebutted. Thus, they are found to have been established by this record, and it is concluded that Respondent was in serious violation as charged in the Serious Citation as corrected.

The proposed penalty for this violation was $650. In my view of the evidence of record, this penalty must be modified.

Under Section 17(j) of the Act, 29 U.S.C. 666(j) the Commission has the exclusive authority to assess all penalties under the Act.[18] Of the four elements set forth in Section 17(j) of the Act, the Commission has held that these factors need not be accorded equal weight,[19] and that the most important element is gravity.[20] Further, four factors may be considered in evaluating gravity.[21]

First, the number of employees exposed to the risk of injury. The evidence herein reveals that three employees were exposed. Second, the duration of exposure. Here, the exposure of these employees was brief, a matter of minutes. Third, the precautions taken against injury. Here, the evidence reveals that no employees were observed by the Compliance Officer in the excavation after his arrival on the scene. Further, the walls of the excavation were sloped back, to some degree, before the Compliance Officer completed his approximate five-hour inspection.[22] Fourth, the degree of probability of the occurrence of any injury. The evidence of this record establishes that this factor was rather high, due to the vertical walls of the excavation, its 10-foot depth, the varying types of soils in which it was dug, the wet weather conditions, the vibrations of Fifth Street traffic, and the added loading caused by the spoil piled up to the edge of the excavation. Further, if a cave-in had taken place, the probability of death or serious bodily harm was increased because of the possibility that any employee in the excavation might be impaled upon the reinforcing bars protruding from the foundation or pad which was in the excavation.

Considering these factors, it is concluded that the gravity of this violation was in the middle range, primarily due to the very limited exposure of employees.

As to Respondent’s size, it has approximately 100 year-round employees, which is increased to 180 in the summer months. It considers its size to be ‘average,’ with gross receipts for 1973 of $6,924,241.

As to its history of prior violations, it has no known history of prior violations of the Act.

As to Respondent’s good faith,[23] the Compliance Officer was of the opinion that it had ‘. . . an ample safety program.’ (TR 67.) Further, Respondent was cooperative throughout the inspection and corrected all conditions found before the Compliance Officer left the worksite.

Upon this state of the evidence, it is concluded that an appropriate and reasonable penalty for the serious violation found to have existed at Respondent’s worksite is §325.

Nonserious Citation

The Standard charged to have been violated in Item No. 1 provides as follows:

29 CFR, 1926.651(i)(1)

In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.

Compliance Officer Wilson testified that on the day of the inspection, he observed the spoil material from the excavation in question, ‘. . . piled directly on the edge of the opening.’ (TR 110.) Exhibits C–1, C–2, C–5 and C–6 depict this condition. He measured the highest pile and found it to be 40 inches at its highest point. He further testified that there was sufficient room to have piled this spoil material two feet back from the edge of the excavation. This condition was discussed with Superintendent Rue, who advised that he had been led to believe that the observed condition was ‘all right’ because a State inspector had not indicated anything wrong.

Mr. Wilson classified this condition to be a nonserious violation and recommended no penalty thereon.[24]

There is no evidence contradicting the testimony of Mr. Wilson and it is concluded that this condition did constitute a nonserious violation of the cited Standard.

In my view of the evidence, however, a penalty in the amount of $25 is warranted as to this nonserious violation, primarily because it increased the gravity of the serious violation, discussed supra, by adding weight to the vertical walls of the excavation in question, and thereby increased the hazard of cave-in. No larger penalty is appropriate because of low employee exposure, and because this condition was corrected before Mr. Wilson left the worksite.

The Standard charged to have been violated in Item No. 2 provides as follows:

29 C.F.R. 602(a)(9)(ii)

No employer shall permit earth-moving or compacting equipment which has an obstructed view to the rear to be used in reverse gear unless the equipment has in operation a reverse signal alarm distinguishable from the surrounding noise level or an employee signals that it is safe to do so.

Mr. Wilson testified that he observed a large front end loader[25] being operated in reverse, with no audible reverse alarm, and no employee signaling.

The evidence reveals that this piece of equipment was equipped with a reverse alarm, which had been functioning early on the morning of the inspection. However, its operator, contrary to Respondent’s instructions,[26] had disconnected this alarm because there were no employees in the immediate area where this equipment was being used to compact fill dirt.

There is no evidence of record which would support a conclusion that Respondent knew of, or could reasonably have anticipated the breach of company rules by this equipment operator, or that such a breach was other than an isolated occurrence.

Thus this case falls within the principle announced by the Commission in Sec. of Labor v. Standard Glass Co., Inc.; 1 OSAHRC 594 (7/27/72), to wit:

An employer cannot in all circumstances be held to the strict standard of being an absolute guarantor or insurer that his employees will observe all the Secretary’s standard at all times. An isolated brief violation of a standard by an employee which is unknown to the employer and is contrary to both the employer’s instructions and a company work rule which the employer has uniformly enforced does not necessarily constitute a violation of section 5(a)(2) of the Act by the employer. (p. 596.)[27]

It is therefore concluded that Item No. 2 and the penalty proposed thereon, must be vacated.

The Standard cited for Item No. 3 provides as follows:

29 C.F.R. 1904.2

(a) Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that establishment, except that under the circumstances described in paragraph (b) of this section an employer may maintain the log of occupational injuries and illnesses at a place other than the establishment. Each employer shall enter each recordable occupational injury and illness on the log as early as practicable but no later than 6 working days after receiving information that a recordable case has occurred. For this purpose, Occupational Safety and Health Administration OSHA Form No. 100 or any private equivalent may be used. OSHA Form No. 100 or its equivalent shall be completed in the detail provided in the form and the instruction contained in OSHA Form No, 100. If an equivalent to OSHA Form No. 100 is used, such as a printout from data-processing equipment, the information shall be as readable and comprehensible to a person not familiar with the data processing equipment as the OSHA Form No. 100 itself.

(b) Any employer may maintain the log of occupational injuries and illnesses at a place other than the establishment or by means of data processing equipment, or both, under the following circumstances:

(1) There is available at the place where the log is maintained sufficient information to complete the log to a date within 6 working days after receiving information that a recordable case has occurred, as required by paragraph (a) of this section.

(2) At each of the employer’s establishments, there is available a copy of the log which reflects separately the injury and illness experience of that establishment complete and current to a date within 45-calendar days.

Mr. Wilson testified that he asked Superintendent Rue for Respondent’s Log of Occupational Injuries and Illnesses (OSHA Form 100), but that Mr. Rue did not appear to know what he was referring to. Upon Mr. Rue’s suggestion, Mr. Wilson called Respondent’s home office and spoke with an unidentified person who similarly did not appear to know what was being referred to.

Respondent’s Vice President testified that Respondent’s Safety Officer, Mr. Rivera, has the responsibility of maintaining the records required under the Act, at Respondent’s home office. Further that the required records were being kept at this location on the day of the inspection and that after the inspection, a representative of Complainant did visit this home office, inspected its OSHA records, and found them in order. He produced copies of these records (see Exhs. R–1, R–2, R–3).

The evidence of record conclusively establishes that Respondent did maintain the required records at ‘an established central place,’ (29 C.F.R. 1904.14(a)),[28] thus satisfying the requirements of Complainant’s regulations. Thus, no violation of the cited Standard has been established and Item No. 3 is vacated.

Based upon the foregoing findings and conclusions and pursuant to the provisions of Sections 10(c) and 12(j) of the Act, (29 U.S.C. 659(c) and 661(i) it is hereby,

ORDERED

1. That the Citation for Serious Violation of Section 5(a)(2) of the Act, and the Standard set forth at 29 C.F.R. 1926.651(c), and Item No. 1 of the Nonserious Citation and the Standard set forth at 29 C.F.R. 1926.651(i)(1), are AFFIRMED.

2. Items numbered 2 and 3 of the Nonserious Citation herein, and penalties proposed thereon, are VACATED.

3. Civil penalties in the following amounts are assessed based upon the violations herein found to exist at Respondent’s worksite;

Serious Violation	$325.00
Item No. 1 - Nonserious Violation	25.00
Total	$350.00

WILLIAM E. BRENNAN

Judge, OSAHRC

Dated: February 5, 1975

Hyattsville, Maryland

---

[1] § 1926.651 Specific excavation requirements.

(c) The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means.

[2] (i)

(1) In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.

[3] § 1926.602 Material Handling equipment

(a) Earth moving equipment; General

(9) Audible alarms

(ii) No employer shall permit earth moving or compacting equipment which has an obstructed view to the rear to be used in reverse gear unless the equipment has in operation a reverse signal alarm distinguishable from the surrounding noise level or an employee signals that it is safe to do so.

[4] Respondent was cited for not maintaining OSHA Form 100. The Judge vacated the item. Neither party has excepted to this holding and it is not before us on review.

[5] Ironically they also have caused to be published in the Federal Register for comment a proposed change in the Commission’s Rules of Procedure the stated purpose of which is to restrict review by the Commission members to matters stated specifically in a direction for review. See 41 Fed. Reg. 24724 (1976).

[6] The full text of Judge Brennan’s decision is incorporated herein by reference and attached hereto as Appendix A.

[7] For the reasons cited in my separate opinions in Secretary v. A J. McNulty & Company, Inc., OSAHRC Docket No. 2295, April 8, 1976; and Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976, I believe actual employee exposure to hazard rather than employee access to the zone of danger should be an essential element of proof in establishing any violation of 29 U.S.C. § 654(a)(2).

[8] At the outset of the Trial, Without objection, the following typographical or clerical errors were corrected in the Citations:

Serious Citation: correct Standard Cited from 29 C.F.R. 1926.651(a) to 29 C.F.R. 1926.651(c).

Nonserious Citation: correct Standards cited; Item No. 1—from 29 C.F.R. 1926.651(h)(i)(1) to 29 C.F.R. 1926.651(i)(1).

Item No. 2—from 29 C.F.R. 1926.602(9)(ii) to 29 C.F.R. 1926.602(a)(9)(ii).

[9] See fn. 1, supra.

[10] See fn. 1, supra.

[11] At the time of trial, Mr. Wilson had assumed the responsibilities of a program analyst in the Regional Office.

[12] Carter-Wallace, Inc. v. Gardner, 417 F2d 1086 (CA 4, 1969) cert. den. 398 U.S. 938 (1970).

Brown v. Gamage; 377 F2d 154 (C.A.D.C., 1967) cert. den. 389 U.S. 858 (1967).

[13] Consolidated Edison Co. v. NLRB, 305 U.S. 197, 230 (1938).

[14] Sec. of Labor v. Hawkins Construction Co.; OSAHRC Docket No. 949 (5/20/74);

Sec. of Labor v. J. E. Roupp and Co. and Denver Dry Wall Co.; OSAHRC Docket Nos. 146 and 147 (4/15/74).

Sec. of Labor v. Gilles and Cotting, Inc.; OSAHRC Docket No. 504 (10/9/73).

Sec. of Labor v. Bechtel Corp.; OSAHRC Docket No. 1038 (10/31/74).

[15] Sec. of Labor v. Armor Elevator Co., Inc.; 5 OSAHRC 260 (1973).

Sec. of Labor v. Arvin Millwork Co.; OSAHRC Docket No. 587 (7/1/74).

Sec. of Labor v. Ellison Electric; 1 OSAHRC 547 (1972).

Sec. of Labor v. Bechtel Corp., supra fn. 7.

[16] Evidence produced by the opposing party is available to either party. Bradford Builders v. Sears, Roebuck & Co. 270 F2d 649 (CA 5, 1959).

[17] A matter significantly affecting the penalty as discussed infra.

[18] Sec. of Labor v. National Realty and Construction Co., 1 OSAHRC 731 (9/6/72); 489 F2d 1257 (C.A.D.C., 1973).

[19] See fn. 11, supra.

[20] Sec. of Labor v. Baltz Bros. Packing Co.; 2 OSAHRC 384 (2/8/73).

[21] Sec. of Labor v. Broadview Constr. Co.; 2 OSAHRC 210 (1/10/73).

[22] The testimony of Respondent’s laborer, DeMarco, that he was instructed not to go into this excavation on January 23, 1974 (TR 145), I find not creditable because of his demeanor and contradictions in his testimony (see TR 144, 147, 161, 178).

[23] See Sec. of Labor v. Nacirema Operating Co., Inc.; 1 OSAHRC 33 (2/7/72).

[24] The Notification of Proposed Penalty issued to Respondent on January 28, 1974 erroneously listed the following penalties for the alleged nonserious violations; Item No. 1—$30; Items No. 2 and 3, no penalties. These proposed penalties were corrected without objection at trial to accurately reflect the Complainant’s proposal, Items No. 1 and 3, no penalty; Item No. 2, $30 (TR 117).

[25] See Exh. C–4.

[26] Respondent’s Vice President testified that it was company policy that all reverse alarms were to remain on at all times (TR 202). There is no evidence to the contrary.

[27] The operator testified that he had been instructed that the reverse alarm was to be kept connected at all times (TR 183).

[28] 29 C.F.R. 1904.14 provides:

Employers of employees engaged in physically dispersed operations such as occur in construction, installation, repair or service activities who do not report to any fixed establishment on a regular basis but are subject to common supervision may satisfy the provisions of §§ 1904.2, 1904.4, and 1904,6 with respect to such employees by:

(a) Maintaining the required records for each operation or group of operations which is subject to common supervision (field superintendent, field supervisor, etc.) in an established central place;

(b) Having the address and telephone number of the central place available at each worksite; and

(c) Having personnel available at the central place during normal business hours to provide information from the records maintained there by telephone and by mail.